Balbir Brar Associates, Inc. v. Consolidated Trading & Services Corp.

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia

ROBERT C. GRANT
MEMORANDUM OPINION * BY
v. Record No. 1960-01-4 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 24, 2002
ROBERT C. GRANT AND
VANLINER INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

David L. Bayne, Jr. (Ashcraft & Gerel, LLP,
on brief), for appellant.

S. Vernon Priddy III (Sands Anderson Marks &
Miller, on brief), for appellees.

Robert C. Grant (claimant), the sole proprietor of a moving

business, appeals a decision of the Workers' Compensation

Commission (commission) finding his pre-injury average weekly

wage impermissibly included earnings attributable to his wife.

Based on that finding, the commission reduced claimant's

pre-injury average weekly wage by thirty percent, terminated his

benefits as of January 1, 2000, and awarded his business's

insurance carrier, Vanliner Insurance Company (insurer), a credit

of $43,803.43. The sole issue on appeal is whether the commission

erred in reducing claimant's pre-injury average weekly wage.

Finding no error, we affirm the commission's decision.

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
 As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

On May 25, 1997, claimant sustained a work-related injury

to his back while lifting a box. At the time of the accident,

claimant was self-employed as the owner/operator of Grant

Trucking, a moving business that transported household goods

under contract with Smith's Transfer and Mayflower Transit.

Insurer accepted the claim as compensable and paid claimant

benefits pursuant to a compensation award entered by the

commission on June 3, 1998.

The commission's award was based on the parties' memoranda

of agreement, which indicated that claimant's pre-injury average

weekly wage was $1,117.65. This figure was calculated using the

$58,118.00 net profit shown for Grant Trucking on Schedule C of

the 1040 tax form filed jointly by claimant and his wife for

1996. In the performance of that calculation, the entire

$58,118.00 profit was treated as claimant's income. Based on

the pre-injury average weekly wage of $1,117.65, claimant

received $334.84 per week in temporary partial compensation

benefits from August 25, 1997, through August 6, 2000, the date

of the last payment, for a total of $51,565.36.

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 Following the injury, claimant returned to light duty work,

earning an average weekly wage of $643.16 in 1997, $635.35 in

1998, and $754.81 in 1999. As of June 6, 2000, claimant's gross

pay for the year was $22,153.60, yielding an average weekly wage

of $981.49. Claimant did not report these increases in his

earnings to insurer.

Insurer filed applications with the commission on August 1,

2000, and September 28, 2000, seeking, on the grounds of

imposition or mistake of fact, a reduction of claimant's

pre-injury average weekly wage commensurate with that percentage

of Grant Trucking's net profit for 1996 that was attributable to

claimant's wife's contributions to the business. Finding that

thirty percent of Grant Trucking's net profit shown on the

jointly filed 1996 Schedule C tax form was attributable to

wife's work, the commission reduced claimant's pre-injury

average weekly wage by thirty percent, from $1,117.65 to

$782.36. Based on that reduction, the commission found that

claimant, whose average weekly wage in 2000 was $981.49, returned

to work as of January 1, 2000, at a wage greater than his

pre-injury average weekly wage. Accordingly, the commission

terminated claimant's benefits as of January 1, 2000. In light of

that termination and the lower amount of compensation owed

claimant because of his reduced pre-injury average weekly wage,

the commission awarded insurer a credit of $43,803.43.

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 On appeal, all of claimant's challenges stem from his

contention that the commission erred in reducing his pre-injury

average weekly wage by thirty percent. The evidence, claimant

argues, did not establish that his wife's efforts provided a

benefit to his business. Accordingly, he concludes, the

commission erred in finding that thirty percent of his

business's net profit in 1996 was attributable to his wife. We

disagree.

In reviewing the commission's decision, we view the

evidence in the light most favorable to the party prevailing

before the commission. See Allen & Rocks, Inc. v. Briggs, 28

Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). The commission's

factual findings are conclusive and binding on appeal if

supported by credible evidence in the record. Southern Iron

Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34

(1993).

It [is] the duty of the [c]ommission to
make the best possible estimate of future
impairments of earnings from the evidence
adduced at the hearing, and to determine the
average weekly wage that [the claimant] was
able to earn. This is a question of fact to
be determined by the [c]ommission which, if
based on credible evidence, will not be
disturbed on appeal.

Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339

S.E.2d 570, 573 (1986). "Thus, if credible evidence supports

the commission's findings regarding the claimant's average

weekly wage, we must uphold those findings." Chesapeake Bay

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Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864,

866 (1992).

Moreover, the commission has "the power and authority not

only to make and enforce its awards, but to protect itself and

its awards from fraud, imposition and mistake." Harris v.

Diamond Constr. Co., 184 Va. 711, 720, 36 S.E.2d 573, 577

(1946).

It is well settled that an employee's
average weekly wage, even after being agreed
to by the parties and set forth in an award
of the commission, is subject to
modification upon the grounds of fraud,
misrepresentation, mistake or imposition.
It is immaterial whether the mistake of fact
is mutual or unilateral.

Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218,

226, 511 S.E.2d 418, 421-22 (1999) (citations omitted). The

burden is upon the party attacking the award to establish

mistake by clear and convincing evidence. J & D Masonry, Inc.

v. Kornegay, 224 Va. 292, 295, 295 S.E.2d 887, 889 (1982).

Here, the parties initially agreed to a pre-injury average

weekly wage of $1,117.65, which was calculated by dividing the

full $58,118.00 net profit shown on Schedule C of claimant's

1040 tax form by fifty-two. However, as the commission found,

the tax form was not filed just by the
claimant but was a joint filing,
representing the earnings of the claimant
and his wife. This, together with the
claimant's testimony that his wife drove
about 40 percent of the time, that she owned
the truck and performed other valuable
administrative duties, proves the average

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 weekly wage impermissibly included earnings
attributable to the claimant's wife.

Examining the driving logs of claimant and his wife, the

commission further found that, during the thirty-six "haul

dates" occurring between January 5, 1996, and February 23, 1997,

"claimant's wife drove 5,695 miles while the claimant drove

13,260 miles. Thus," the commission continued, "on those dates,

the claimant's wife drove 30 percent of the time." Accordingly,

the commission found that claimant's pre-injury average weekly

wage should be reduced by thirty percent, from $1,117.65 to

$782.36.

The commission's findings are supported by credible clear

and convincing evidence, including the jointly filed tax form;

claimant's testimony that his wife owned the truck, performed

administrative duties for the business, and drove forty percent

of the time; and the driving logs. As fact finder, the

commission could permissibly infer from such evidence that, in

initially calculating claimant's pre-injury average weekly wage,

the parties mistakenly used the full net profit listed on the

joint tax form, rather than only that portion of the business's

net profit that represented claimant's earnings. The commission

could also permissibly infer from the evidence that thirty

percent of the net profit shown on the tax form was attributable

to wife's contributions to the business.

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 We hold, therefore, that the commission did not err in

reducing claimant's pre-injury average weekly wage from

$1,117.65 to $782.36 and, based on that reduction, did not err

in terminating claimant's compensation benefits as of January 1,

2000, and awarding insurer a credit of $43,803.43.

Accordingly, we affirm the commission's decision.

Affirmed.

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